In June 2018, in a case called Bethune-Hill v. Virginia State Board of Elections, a federal district court in Richmond struck 11 districts as unconstitutional racial gerrymanders. Because the remedial map will likely impact the balance of power in the state legislature, its majority members would like to appeal the district court ruling.

The original defendant in this case was the Virginia State Board of Elections. The Virginia House of Delegates and the Speaker of the House of Delegates were permitted as Defendant-Intervenors in the original litigation. The trouble is, Virginia Attorney General Mark Herring declined to appeal the ruling on behalf of the Virginia State Board of Elections. The Virginia House of Delegates and Speaker Kirk Cox, appealed the ruling as Defendant-Intervenors.

In at least the two most recent “big” elections in Virginia, the 2016 Presidential race, and the 2017 race for Governor, there has been some controversy over the method used to decide which order candidates appear on the ballot. In March 2017, the Corey Stewart campaign issued a press release accusing Ed Gillespie’s campaign of “manipulating the Virginia Board of Elections in a last-ditch, rule-breaking effort to have Ed’s name placed at the top of the [primary] ballot.” Virginia law provides that ballot order for primaries is determined by the time that a candidate files for the office, on a first come first served basis. If candidates file simultaneously, ballot order is determined by lottery. The Stewart campaign went so far as to camp out in front of the Board of Elections offices the night before in order to be first, but alleged that Gillespie’s campaign was pressuring the Board to consider their filings simultaneous.

Looking back just a bit further, Virginia’s ballot ordering rules also caused some controversy during the 2016 election cycle. In general elections, Virginia law provides that candidates from major political parties, that is, parties that receive more than 10 percent of the vote in two previous statewide elections, are listed on the ballot first, followed by candidates from minor parties, and lastly, the names of independent candidates. This law was challenged by a former minor party candidate for governor, Robert Sarvis, of the Libertarian Party, and eventually found its way up to the 4th Circuit. In June, 2016, a three judge panel of the 4th Circuit affirmed the district court’s dismissal of the case, based largely on a theory that the ballot ordering law does not harm minor parties.

It is hard to say whether this controversy will continue. Two data points hardly make a trend, but the issue has proved important enough to drive a gubernatorial campaign to literally camp out in front of the Board of Elections, and a third party candidate to fight a case up to the 4th Circuit. Why is ballot ordering even an issue? Surely voters are able to discern which candidate they prefer, no matter the order of names on the ballot.

Contrary to this notion, there is a body of evidence that suggests that order on a list does matter. It seems that when people make choices, there is some preference for selecting choices that are listed first, or higher, in a list of choices. Larry Sabato, writing for the University of Virginia Center for Politics, has looked at the political implications of this bias. His conclusions contain an interesting implication for ballot ordering in Virginia. While he concludes that races for major offices such as president and governor are not highly impacted by serial position effects, lesser offices and non-partisan races are especially susceptible. Therefore, many “lesser” elections in Virginia, where candidates are not associated with parties, may be especially influenced by this form of selection bias.

It is possible that ballot ordering controversies will go nowhere, and that the issues raised in 2016 and 2017 will be a fluke. On the other hand, in an increasingly polarized voting climate, where parties compete to eke out whatever advantages they can, perhaps the minor advantage gained by being listed first on a ballot will become increasingly attractive. Ballot ordering is a currently minor issue, but one with increasingly significant potential.

On September 14th, fourteen plaintiffs represented by DurretteCrump PLC filed suit in the Circuit Court for the City of Richmond against the Virginia State Board of Elections, alleging that their respective House of Delegates and State Senate districts are not compact. Compactness is one of the Virginia Constitution’s three redistricting criteria. Along with compactness, the Voting Rights Act (VRA) requirements, and the “one person, one vote” requirement, districts must be contiguous and as close to equal in population as possible. Contiguity and equal population are relatively easy to determine, by looking at the proposed maps and the population data, respectively, compactness is more complicated.